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protein wisdom says: I freakin’ told you so. [updated x2]

Over. And over. And over and over and over and over and over. And over and over and over.

Intentionalism just is. But because we can’t concern ourselves with what we believe we’re doing when we claim to be interpreting, we’ve ended up institutionalizing a tyrannical form of “interpretation” that is linguistically incoherent. Thus, behold:

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

I won’t have to unpack that for longtime readers of this site, but do allow me to unpack it — as I’ve done with similar linguistically incoherent statements in the past — for those who will spend today bemoaning a ruling that, when viewed from their own intepretative perspective (rather than their policy desires), they can’t honestly fault.

To wit: “Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”

Fine. How is this the case? Because, per Roberts, the mandate looks something like a tax might look and could look — much in the way a cloud formation may look like a randy sheep three way, if you’re inclined to see it that way. But unless you believe God or Nature intended to paint a sheep orgy in the gas and water vapor floating above Peoria, the clouds aren’t actually a sheep orgy save your intent to see it as such.

Intentionalism just is.

But, you argue, it clearly wasn’t intended as a tax (or if it was, there’s no way of ever knowing that, given that it was presented as a penalty and not a tax) — because the President publicly denied that it was a tax, and it was passed expressly as a penalty. Therefore, it was signified into being — at the point of passage — as a penalty. And a penalty is not a tax.

Or is it?

Intentionalism just is.

According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling. Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax. Which he justifies because the way the penalty looks to him suggests that “reasonable” people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax. How that is “reasonable” is anyone’s guess: we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax, therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”. And that seems antithetical to “reason.”

Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.

And to do that, he — and those who approve of the argument that justifies this ruling — has to pretend that the text exists on its own, apart from the intent that generated it and passed it, and (here’s the sneaky part) apart from his intent to imbue it with a meaning that it didn’t have upon signification — upon its becoming language and then becoming a legal manifestation of that language, of that intent. That is textualism. And textualism is merely intentionalism that legitimates the disregarding of originary intent — that seeks to claim ownership over the meaning of a text without admitting to co-opting it or rewriting it entirely until it means precisely its opposite, eg.

update: It occurred to me while taking a long walk that Roberts can claim that the was taking the Administration lawyers at their word when they argued before that court that what they had done, essentially, is levy a tax (albeit one that began in the Senate). But even were that the case, Roberts would then be issuing his ruling on a law different from the one passed by Congress: if it was presented as a penalty and intended as one, the only way to “read it as a tax” is to accept that notion that it became a tax once the government asserted that it was one.

They didn’t do so leading up to the vote, and in fact the President himself very publicly denied that the legislation’s mandate was a tax. So either Justice Roberts decided a text not intended to include a tax in fact included a tax because it can be made to look like it contains a tax by him; or else the government turned a penalty into a tax during their legal arguments, in which case CJ Roberts would be issuing a ruling on a different law entirely than the one passed by Congress and presented for review by SCOTUS.

And neither line of reasoning is hermeneutically compelling.

****

update 2: Lots of buzz about CJ Roberts’ genius in this ruling. All very interesting — and all very beside the point, from the perspective of my analysis. From a linguistic and hermeneutic perspective, the form of “interpretation” Roberts relied upon to reach his ruling is necessarily authoritarian. One can act tyrannically in the service of any decision — even one favorable to “our” side.

The problem is, such a method of reasoning, accepted and institutionalized as legitimate, will, in the aggregate, move us toward tyranny precisely because it is designed to do so. Which is why we need to reject judicial activism in principle and not cheer it when it serves our own ends. As I’ve been writing in the comments all morning, Roberts’ decision — ostensibly framed as restrained and above the partisan fray — is itself quite political. And some on the Left are starting to notice.

Well and good, if you wish to elevate politics above first principles — even if you say you’re doing so in the service of first principles. I don’t wish to do so. Moreover, I recognize the systemic danger in so doing.

Had Roberts just done his job, the law would be dead. Instead, he concerned himself with appearances. And we’ll all suffer for it — in perpetuity, as precedent, regardless of whether this law is repealed or not.

T0 follow-up on the spin, “Obama Wins the Battle, Roberts Wins the War — and the Constitution Loses In Both Cases”

Comments (237)

For its next trick, Congress shall pass a law requiring every Constitutional lawyer to publicly flagellate himself every day and twice on Sundays. Should any such lawyer refuse to flay himself, he will be taxed $1,000 for each day that he fails to meet his federal requirements. Requirements and penalties shall be double for member of the federal courts.

Congress would not be able to tax anyone a penny if the subject matter on which lawmakers sought to spend the money raised was not within Congress’s constitutional authority to address. Health care and health insurance are precisely such issues. So why does Congress get to raise taxes for and spend money on them? Because the country — very much including Republican leaders and many conservatives — has bought on to the wayward progressive premise that the General Welfare Clause of the Constitution empowers Congress to spend on anything it wants to spend on as long as their is some fig-leaf that ties the spending to the betterment of society. That, and not an inflated understanding of the Commerce Clause, has always been the problem. Republicans are afraid to touch this because, if you follow the logic, you’d have to conclude that Congress has no constitutional authority to set up a Social Security system, a Medicare or Medicaid program, or most of the innumerable Big Government enterprises that Republicans support while, of course, decrying Big Government. Republicans occasionally want to limit what government spends, but they don’t want to acknowledge any constitutional limits on what government could spend — that’s what has gotten us to this point.

It’s even worse than you imagine. John Roberts has basically just decreed that it is permissible to tax non-activity. In other words, it’s a distinction without a difference from reliance on the commerce clause, and in fact much more pernicious, because the Chief has just granted the federal government new powers.

Friend of mine just pointed out that, for the purposes of using the Anti-Injunction Act, the Court decided that Congress did not intend for the mandate to be a tax and so the Anti-Injunction Act does not apply.

The Court then, in the same document, calls it a tax in order to rule on the constitutionality of the law.

I’d say something about lawyers but what else needs to be said, at this point…

Actually, it’s per Roberts himself, isn’t it? Ginsberg’s concurring opinion (joined by the rest of liberal block) held that they’re fine with the notion that the Commerce clause allows Congress to tell you what you buy.

I made the same point to a friend of mine who is adamantly pro-gay marriage. My point to her was that if you’re okay when the judiciary enforces your wishes by fiat, you’ll have no room to complain when they cart us all of the gulag. Sure, I’ll be in chains too, but I’ll be laughing my ass off and pointing at her sad little clown face.

The really fucked up thing about this? Roberts made an activist reading of the law (the mandate’s not really a mandate if it can be understood to be a tax) itself in order to reach a restrained* decision.

*One understanding of the doctrince of judicial restraint —call it the Frankfurter doctrine— hold’s that Courts should defer to the will of the people, as reflected in the legislation enacted by their elected representatives on their behalf. (Set aside that Congress arguably was acting against the will of the people to force through an unpopular law on a party-line vote).

Just out of curiosity (hot air crashes my tired ol’ eMac) who’s the pompous ass who dropped the “fundamentally unserious” turd in the comments. (I’m assuming that’s something found in the comments, anyway.)

The best Roadrunner cartoons are those where Wile E. Coyote executes his clever plan, it backfires, and as he contemplates his failure, the last domino in the chain of unintended consequences drops inevitably into place, as it must.

But only after a comically significant pause. And then the chunk of rock we almost forgot about pile-drives him further into the crater.

Erickson’s full of shit. Anyone who can open his argument by saying that Roberts’ punting on his Constitutional duty was the act of a chess grandmaster is somebody who can’t be taken seriously.

The Court’s job was not to “stay above the partisan fray.” The Court’s job is to enforce the limits on Washington’s power, and to protect the rights of an erstwhile “free people” to live their lives with a minimum of intrusion from the power-hungry sociopaths inside the Beltway.

So I’m not buying any nonsense about chess mastery. This was a punt, and a cowardly dodge, and for Erickson to try to pick through the pile of dog shit to find some flecks of gold leaf to claim as victory is just sad. I’d say it was beneath him, but he’s shown in the past that very little is any more.

My take is this: Erickson is looking at this from the perspective of politics. I’m looking at it from the perspective of foundational, kernal structural assumptions. What is not Roberts’ job is to teach us a lesson about keeping politics political.

Roberts further legitimates a way of interpreting that merely means others will have leave to interpret this way. If we have leave to interpret this way, the Constitution is indeed a “Living document.” And if it is indeed a Living document, it is not stable — and so, coming full circle, is inherently politicized.

I’m completely down on Roberts. His hubris — disguised as modesty and restraint — has further ushered us toward our own demise. All it takes is people with no virtue willing to assert — and the votes needed to bring that assertion into being.

I will say this, though: I suspect the pollyanna pragmatists on the right will be far more likely to accept Erickson’s analysis than to even bother with mine. Which is precisely why I talk about a ruling class, its useful pragmatic idiots, and losing more slowly.

Not saying that about Erickson, by the way. Just reacting to his analysis, which I reject.

Limbaugh just said the court said “There is no limit on what the Government can tax.” He’s now expanding on that. But I beg to differ, for I think there is a limit, albeit not a limit residing within the control of any of the three branches. Still, we are the limit. And we will see whether we impose those limits it is in our powers to impose. This, I think, is the fullest meaning of the term politics.

A ‘binary choice’ they say, yea or nay on Obamacare. Given BHO’s skill as ‘Community Organizer in Chief’, and our current crop of soft, weak, and ever-more-expectant ‘Americans in Name Only’, expect a landslide for four more years.

Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was

That’s the part I think the biggest load of horseshit ever piled. Even Obama knows that’s horseshit, which is why he refused to call it a tax.

What they can do now? Declare a war on obesity, and tax everyone whatever if they are not at their proper BMI. Also, tax everybody whatever if they don’t do their required annual doctor visit, where the doctor will determine if you are at the proper BMI, along with a few dozen other taxable markers.

This was and still is the whole problem with the mandate that stands, it changes the whole relationship between the government and the people. We are no longer free men.

Very simply: They are the same old Republicans. GOP leadership is jittery that the Fast & Furious investigation, and the extraordinary measure of holding Holder in contempt, will make the Obamedia say bad things about them and — shudder – upset independents and moderates. Yet leadership also knows that if it does not, at least for appearances’ sake, back Issa, conservatives and other concerned Americans, who want accountability for this heinous episode, will revolt. So leadership figures: We’ll do the contempt vote to satisfy the right-wing knuckle-draggers, but we’ll do it while nobody’s looking so the left-wing press will have to go easier on us. Profiles in Courage! *

Sure, Harry Reid will take that bill and wipe his ass with it, after which Boehner et. al. will say, “well, we tried to repeal it and we failed, so now we have to find a way to reform it and make it work,” but only after they promise to try, try again after we elect more Republicans!

(And all the while, they’ll be hoping the Dems hang on to 41 seats in the Senate so they’ll have no choice but to go down the reform path they want to go down anyways.)

My new litmus test. If it doesn’t shift power or responsibility away from DC and the crapdouches that infest it, I’m agin it. If you vote for stuff that consolidates power or responsibility in DC, I’m voting agin you.

What they can do now? Declare a war on obesity, and tax everyone whatever if they are not at their proper BMI. Also, tax everybody whatever if they don’t do their required annual doctor visit, where the doctor will determine if you are at the proper BMI, along with a few dozen other taxable markers.

Bloomberg doesn’t have to ban 32 oz. sodas, now. He just has to tax soda pop at $10/ oz. for every once above the arbitrarily determined optimum.

I’m dismayed with this finding, like most here at PW, and agree completely with out host’s thoughts on the matter; but I can’t say I’m surprised…

Not only did the CJ choose to rewrite the statute, but seems to have done so precisely because of political pressure to “not politicize” the court. He was more concerned with his “legacy” than the Constitution, and bought into all of the prattle being spewed by Politico et al. Funny isn’t it, how righteous and proper this 5-4 decision is today, when the very same people cheering have been telling us how illegitimate a 5-4 decision in this case would be…

Erickson’s attempt to pluck diamonds from this dung is as much twaddle; Jeff is correct in saying beware of entering the cocoon that would somehow declare this a victory for classical liberals/conservatives/constitutional originalists. About the only saving grace here is that it fully frames the issue starkly for the fall; do people want the new stupendous health tax, the one Obama swore wasn’t, and the concomitant welfare state, or do they really want to reject it all?

The other day after the Arizona decision came down, I remarked that I thought Limbaugh had lost the thread. Today, attempting to grasp this decision, follow the Congressional debate prior to the debate on the Holder Contempt vote, listen to Limbaugh explain his take on NFIB et al v Sebelius as well as listen to him explain twenty other people’s take, read here, read the decision, and read forty other things, I think I’ve lost the thread.

[E]ither Justice Roberts decided a text not intended to include a tax in fact included a tax because it can be made to look like it contains a tax by him; or else the government turned a penalty into a tax during their legal arguments, in which case CJ Roberts would be issuing a ruling on a different law entirely than the one passed by Congress and presented for review by SCOTUS.

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.

Not only did the CJ choose to rewrite the statute, but seems to have done so precisely because of political pressure to “not politicize” the court. He was more concerned with his “legacy” than the Constitution, and bought into all of the prattle being spewed by Politico et al.

Reminds me of when Obama went after the court during his State of the Union Address over the corporate donation ruling. That must have stung more than we thought.

Also, for a reason I haven’t really nailed down yet, I remembered Roberts muffing the swearing in of Obama, whereupon they did it again later in private…or so they tell us.

Roberts could have done the same without pretending that he had before him a tax. He pussied out. And in so doing, he has legitimated once again the very kind of misuse of language that I’ve argued for years on a foundational level inevitably leads to tyranny.

People like Althouse and Erickson, et al., want to argue about how judicial activism in this instance may serve the purposes of constraining government. But I’m against judicial activism in principle. That’s why I highlighted the language I did and dealt with the ruling on the level I did.

“By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). . . . Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.”

As to the substance of what Althouse reviews, yes, she’s right, the ruling recognizes that this can never work without a mandate. But that just paves the way for the destruction of the private insurance industry and the rise of single payer. At some point. Likely, every time the left wins a national election.

Then it’s up to us to educate them. Or at least to deprogram the nonsense the State put in their heads from the time they were young.

All we need is for one state to push back. Six or ten would be even better. Just a couple of Governors and Legislatures deciding that maybe they won’t let their borders be invaded, or they won’t take their power plants offline and sit in the dark, or they won’t turn over their hospitals to the IRS, or they won’t bail out California.

I’m not seeing the merits of the trade. Legitimizing the most massive intrusion on personal liberty–determining how and when your bodily integrity will or will not be affected by medical treatment, the effective nationalization of 1/6 of GDP versus….what?

A little nibbling pushback here and there, on the margins?

Sounds like the Rice-a-Roni you’d get for finishing last on a game show to me.

Bombshell: John Roberts consulted the Red Queen in the Looking-Glass before siding with the constitutionality of ACA. Quote: “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”

Somebody with way more betterer multi-media skills than I, using Monty Python as a model, ought to do a video of Roberts explaining to the rest of the court why a mandate to engage in commerce is a penalty for not engaging in commerce is a tax in lieu of engaging in commerce.

The net result of all of this will be an inexorable consolidation of power in DC. No matter whose particular ox is getting gored at any particular time, it will always be to the ultimate benefit of those who impose the tax.

I like that the Daily Caller has an article by Andy Stern, extolling the virtues of the decision and Obama care- they couldn’t wait a day or two to post it, while some of us settled down. And when I say “I like” I mean Tucker Carlson can kiss my very white ass.

I think what he did was to clarify the issue. Mandates are taxes. They can be called whatever and they can be defended as falling under the unicorns and rainbows clause, but in the end, a mandate is a tax. Its not unconstitutional to lie, so, if you don’t like the law, fix it.

Let me specify that he did not say this approvingly, but Ed Morrissey just opined on his ustream show that single-payer makes more sense from the standpoint of Congress’s power of taxation. So it begins.

Also, apparently both Slate and Reason (!) are saying conservatives come out ahead with this decision.

I have to start smoking banana peels and snorting nutmeg again. The world made more sense that way.

Vassal states often enjoyed a great deal of autonomy, including keeping their own system of law, and much of their cultural practices.

Even Charlemagne, who tried to impose some degree of uniformity within his empire, recognized limits to what could be accomplished. So he often found it better to leave the various peoples to their own devices (hereditary lines, rules of inheritance, etc.) so long as they avoided running at cross purposes when it came to the broader interests of the empire.

http://ace.mu.nu/archives/330550.phpThe kind of “pragmatism” or “anti-formalism” like we’ve seen today is a slippery slope. It takes onus away from Congress to legislate in a clear fashion and opens up the interpretation of statute to too much convenient second-guessing by the court. This is less about the rule of law than it is the rule of men. Because where do you stop? Why not “read” the law utterly subjectively to be whatever you want whenever you want, depending upon utility in the moment?

You might want to read a bit of Jeff over here, Acey boy. Learn a thing or two.

By Nathan Mehrens — Today the U.S. Supreme Court in an opinion by Chief Justice Roberts held that the individual mandate provision in Obamacare, i.e., the requirement for most Americans to purchase health insurance or pay money to the IRS, is a tax that was properly applied by Congress.
The Court held that this payment for not having health insurance was not a “penalty” because it does not punish the individual for an unlawful act, but is instead a use of the tax code to encourage behavior, much like other aspects of the tax code such as tax deductions and credits for certain behaviors and circumstances.

The Court did hold that the imposition of the individual mandate could not be sustained as part of Congress’ Commerce Clause powers, but at the end of the day the result is the same: those who choose to not purchase health insurance must pay a “tax” to the federal government for exercising that right.

In a surprising move, the Court ruled 7-2 against Obamacare’s expansion of Medicaid to 133% of the Federal poverty line. The court took issue with the way Obamacare coerces states to accept the new funding levels by threatening to cut all current Medicaid funding for states that do not comply.

Prior to this ruling, the constitutional limit on Congressional spending was only theoretical. In South Dakota v. Dole, 483 U.S 203 (1987), the Court said that Congressional spending would be unconstitutional if it effectively coerced states into agreeing to a federal program. In that case they ruled that Congress had not gone that far.

But this is the first case where the Supreme Court has drawn a line in the sand and told Congress that their actions constitute unconstitutional coercion of the states. Says Chief Justice Roberts,

In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.

The conservative justices on the bench (Scalia, Kennedy, Thomas, and Alito) would have thrown out Obamacare in its entirety solely on this issue. But the Chief Justice, along with Ginsburg, Breyer, Sotomayor, and Kagan, merely severed the part of Obamacare that threatens withholding current funds to states that do not agree to expansion.

Nathan Paul Mehrens is counsel for Americans for Limited Government and previously served in the U.S. Department of Labor under President George W. Bush.

The Court did hold that the imposition of the individual mandate could not be sustained as part of Congress’ Commerce Clause powers, but at the end of the day the result is the same: those who choose to not purchase health insurance must pay a “tax” to the federal government for exercising that right.

snip

…Prior to this ruling, the constitutional limit on Congressional spending was only theoretical. In South Dakota v. Dole, 483 U.S 203 (1987), the Court said that Congressional spending would be unconstitutional if it effectively coerced states into agreeing to a federal program. In that case they ruled that Congress had not gone that far.
But this is the first case where the Supreme Court has drawn a line in the sand and told Congress that their actions constitute unconstitutional coercion of the states. Says Chief Justice Roberts,
In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.

Just so I’m clear on this… Roberts will absolutely not, no ma’am, no how, stand for the Feds putting a financial gun to the metaphorical heads of the individual States. But putting a gun to every single citizens’ head if they “exercise” a “right” to not purchase insurance, that’s just the sauciest of awesome, according to Lord High Commissar Roberts.

Fucking tyranny. The separate States have more liberty than the citizens themselves.

Why, Jeff, it’s because Roberts was appointed by a compassionate conservative, which means he’s a compassionate conservative too! And why on earth would anyone want to believe a compassionate conservative would do anything that wasn’t both compassionate and conservative?????

because John Roberts concluded it was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

Yes, but if Roberts says it’s a tax, does that compel Congress to treat it as such, procedurally?

If so, why? Roberts didn’t stick to what Congress said the mandate was, so why should Congress stick to Roberts’s “interpretation.”

Why oh why oh why do people refuse to see this?

NRO’s editors see it:

If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken. The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.

Roberts set a precedent that will be abused by the left (and compassionate conservatives) — that is, the ruling class — forever. And it can’t be changed. It’s precedent.

There’s his legacy. All these “thinking conservatives” pretending what happened here was a victory, albeit a “political” one, miss the forest for the trees. And yet it is they who drive conservative thought.

Even today, they’re propping up Roberts in an absurd and obscene way. It’s embarrassing.

You like that? What did I say in my post this morning? That’s right, I have no interest listening to them or engaging them. I’m their enemy and they mine. I’m nobody’s subject. And especially not the mincing beta males who people that swamp of sophistry and special pleading.

Hey, George Will and Hugh Hewitt and Charles Krauthammer: we didn’t win a fucking thing. And the fact that a supposed conservative Justice upheld this thing is repulsive and depressing, not invigorating.

It doesn’t teach us the need to redouble our efforts; it tells us that no matter what we do, the ruling class will eventually find a way.

That will not retrospectively alter the fact that Bush and all the other Zarathustra Republicans cheering for Roberts haven’t the first idea what kind of justice Roberts will be right now. They are telling us their hopes and dreams.

I share their hopes and dreams! I also hope it doesn’t rain in August. I’m not throwing out all my umbrellas, and I won’t be “proved wrong” in that decision even if the rain never comes. This is a fact: Right now, we don’t know.

Republicans are desperately trying to convince themselves that Roberts will be different because they want to believe Bush wouldn’t let us down on the Supreme Court. Somewhere in America a woman is desperately trying to convince herself that her husband won’t hit her again because he told her “things are going to be different this time.” (And yes, that woman’s name is Whitney Houston.)

Bush said “Trust me,” and Republicans trust him. It shouldn’t be difficult for conservatives to convince themselves that Roberts is our man. They’ve had practice convincing themselves of the same thing with Warren, Brennan, Blackmun, Stevens, O’Connor, Kennedy and Souter.

Justice Kennedy, who read from the dissent from [the majority] opinion, and he stated quite emphatically that what happened today is that the Supreme Court in effect re-wrote the ObamaCare legislation. In effect, with their opinion, being a legislative court, as opposed to allowing Congress to make that decision.” … What we have bought today in this Supreme Court decision is nothing more than unparalleled economic uncertainty. Because you see at the heart of ObamaCare is a bill that will never finish being written.

RGA Chairman Bob McDonnell said, “Today’s ruling crystallizes all that’s at stake in November’s election. The only way to stop Barack Obama’s budget-busting health care takeover is by electing a new president. Barack Obama’s health care takeover encapsulates his presidency: Obamacare increases taxes, grows the size of government and puts bureaucrats over patients while doing nothing to improve the economy.”

The Virginia governor, who is on Mitt Romney’s list of potential vice presidential candidates, added, “By replacing Barack Obama with Mitt Romney, we will not only stop the federal government’s healthcare takeover, but will also take a giant step towards a full economic recovery.”

Other governors have urged a similar strategy. Scott Walker, the newly re-elected Wisconsin governor, said that he won’t put into place any elements of Obamacare until after the election. Other governors are taking a similar position.

This is a huge wakeup call that as limited-government, pro-Liberty types we should never ever rely solely on the courts.

That’s just a fool’s game as bad law isn’t necessarily unconstitutional (general observation, not necessarily here because Roberts had to hand his decision on an argument not made AND conclude the ObamaTax is not a direct tax either)

We must win this in the political arena. I’m going to be working on the Elizabeth Emken campaign here in CA, even if it smacks of tilting at windmills

Ernst, as I commented to Jeff’s portrait of an Obama victory owing to this sham of justice, seems to me either natural right is something, and if something, then something that will out, if only because people actually can’t rid themselves of a sense they’ve been wronged.

Or if it’s nothing, then we’ve been chasing a phantasm all along, haven’t we?

Lee, I don’t know about that. I’ve seen a popular Max Cleland brought down by a relatively unknown Congressman because GA was ready for a GOP Governor and Chambliss rode in on those coattails.

In FL Nelson is being hammered almost daily because of his votes for ObamaCare. He is leading now but the GOP hasn’t settled on his opponent and won’t until August. I expect the polls to narrow at that point. In the last election, FL elected a GOP Governor and Sen Rubio. Hopefully the trend continues.

I’m not going to lie: I’ve been seriously short the last couple fundraisers and, though I know times are tough, I’m worth the contribution. Otherwise I’m going to have to give up my scalping business and go to work at 7-11.

If you’ve been faithful to this site, you’re on the cutting edge of what’s what. You were prepared to understand how fundamentally wrong was this decision and why. And that matters when I’ve been frozen out by just about every fucking place on the right — mostly because I call them out, and partly because I’m a dick.

But an informed one. Who passes it on, without prejudice. Let’s admit that, at least.

I’m not playing at anything. But if SCOTUS decides something wrong (Dred Scott? Kelo? hello?) then it is up to the citizenry to correct it.

Not that citizens get it right all the time either (Prohibition)

Democracy is based on the assumption that a million men are wiser than one man. How’s that again? I missed something. Autocracy is based on the assumption that one man is wiser than a million men. Let’s play that over again too. Who decides? ~~Robert Heinlein

well you know what? this makes it even easier for me to ignore the election this fall. I was not going to vote for Romney, and now that it looks like Obamacare and higher taxes are our destiny, there’s even less reason to vote.

“That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.”

This is utterly incoherent to me, if Dr. K means to assert that Roberts’ rewriting of the law is not the ultimate act of hubris and arrogation of power on its face, achieving precisely the opposite result from the intention Krauthammer seems to wish to attribute to Roberts. How, after all, does one ‘esteem’ such a power grab? Or for that matter, such an absurd rationale?

Pish-posh Sdrerr, philosophical conservatives always talk about the legality of taxing inactivity. And re-wording the legislation they are ruling on, if they happen to be a philosophical conservative judge.

Also, as Levin pointed out, just because the supreme Court has ruled legislation unconstitutional 169 times before, doesn’t mean a philosophically conservative judge can make such a activist ruling on a 170th.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition–not owning health insurance–that triggers a tax–the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income[!]. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

One of these things is not like the other ones, one of these things doesn’t belong; but that’s not important right now. What’s important is that Robert’s judicial activism was in the service of the principle of judicial restraint: The court is going to defer to the elected representatives of the People. If they want to pass stupid laws, that’s the People’s problem to solve, the Court is not in the business of judicially ratifying legislative policy preferences.

Except when it is. And this was a fucked up way to try to resestablish judicial restraint, straw clutching in order to end straw clutching, as it were.

What Roberts has done is to signal that there will be no rollback of the Progessive agenda via the courts. The ratchet remains intact.

The Court held that this payment for not having health insurance was not a “penalty” because it does not punish the individual for an unlawful act, but is instead a use of the tax code to encourage behavior, much like other aspects of the tax code such as tax deductions and credits for certain behaviors and circumstances.

Except that isn’t what Congress did, because (and maybe I’m wrong, not being a lawyer, and thus unable to opine with authoriteh) Obamacare isn’t a tax law, is it? And anyways, if Congress wanted to “encourage behavior,” like say, for instance, encouraging you to buy health insurance, they could have just made your health insurance tax deductible.

Going back to Mehren for a second, the rest of the tax code doesn’t encourage behavior by making you pay more if you decline to participate in the encouraged behavior. (e.g. no tax credit for you if your childless, but they don’t charge you and extra $500 for not having one).

It’s occurred to me that if Roberts did game this ruling, the other justices know it, and their respect for the Chief will have been adjusted accordingly. The very next time either the Commerce Clause or the Necessary and Proper Clause come up for interpretation, all Roberts’ too-clever-by-half maneuverings to set the precedent while also keeping ObamaCareTax alive as a campaign issue, could be shot to hell, and the next attempt to impose an individual mandate, with penalty, could actually have Commerce Clause cover as a result.

And that’s all assuming Congress doesn’t decide such maneuverings aren’t a violation of the “good behavior” qualification for Supreme Court justices.

If that’s what happened. And if it is, God alone knows whether the good will ultimately outweigh the evil. Roberts couldn’t, and we can’t, and that’s why we have this saying about the ends not justifying the means.

“It’s occurred to me that if Roberts did game this ruling, the other justices know it, and their respect for the Chief will have been adjusted accordingly. ”

I attempted to imagine his relations with the four dissenters yesterday. No matter what Roberts’ intentions, frosty was the best I could come up with. Held at arms length as one would do with a psychotic, at worst.

Here’s what I think happened: Roberts went the direction he went, because it allowed him to write a broad opinion that essentially put a stop to the use and abuse of the Commerce Clause. Roberts also moved to re-assert the Tenth Amendment rights of the States.

(I am in no way excusing this ruling, because, as Jeff said, it is still an activist ruling and judicial activism is wrong, no matter which way it goes)

I tend to think Roberts would rather have gone for the trifecta of States Rights, limiting the use and abuse of the Commerce Clause and striking down Obamacare.

However, trying to do all three was probably a bridge too far for Justice Kennedy, which means Kennedy moves to the other side.

Yeah, this is an ugly ruling, but consider the consequences of a Kennedy, Ginsburg, Sotomayer, Breyer, Kagan ruling.

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